Arbitrator orders back pay for CBP agents denied foreign language pay

Dec. 10, 2012 - 03:22PM
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A Customs and Border Protection officer inspects a car during a regular sweep on the bridge that separates the U.S. and Mexico in El Paso, Texas, in 2006. (Hector Mata / AFP via Getty Images)

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About 350 past and current Customs and Border Protection agents could receive thousands of dollars in back pay under a newly issued arbitrator’s decision.

Between 2004 and 2006, Customs and Border Protection administrators failed to provide extra pay to Texas-based agents who used Spanish on the job, Arbitrator Louise Berman Wolitz wrote in her Dec. 3 ruling on a 2005 grievance filed by the American Federation of Government Employees local that represented the employees at the time. The agents had been part of the Justice Department’s Immigration and Naturalization Service before joining CBP as part of the 2003 creation of the Department of Homeland Security. While former Customs Service agents got the extra pay under the Foreign Language Award Program (FLAP), the former INS agents did not, Wolitz said.

The agency “failed to treat the men and women, who were working every day to ensure the safety of our nation by utilizing their foreign language skills to protect our border, in the same manner as their co-workers,” Wolitz wrote. The inequity, she said, “crushed employee morale.”

During the arbitration, employees testified “that they purposefully stopped or delayed performing duties that required foreign language because they were not receiving the pay for FLAP that their co-workers were,” Wolitz added.

She ordered CBP officials and the union to decide how much is owed the employees and report back to her by Jan. 15. The agency is “still evaluating its options,” a CBP spokesman said in an email.

Ben Wick, one of the attorneys representing AFGE, said the foreign language program pays agents between 3 and 5 percent of their base salaries depending on their proficiency in Spanish. Overall, Wick said, the agents would receive about $3,000 to $5,000 in back pay and interest for each year in question.

According to Wolitz’s ruling, CBP officials argued that they had to first bargain with the union before making the INS agents eligible for the extra foreign language pay. Although they agreed to do so in 2007, Wick said, that agreement did not cover the period covered by the grievance.

Wick praised the decision for recognizing the “inherent wrong” that was done.

A decision in the case was delayed by years of wrangling over whether the grievance could be the subject of arbitration.

Since 2007, CBP officers have been represented by the National Treasury Employees Union, which originally negotiated the award program in the 1990s, according to union President Colleen Kelley. While CBP sought to “unilaterally” end the program in 2010, NTEU filed a grievance and succeeded in having it retroactively reinstated, Kelley said in a statement.

While the program is important to CBP employees, she said, “it is vital to tens of thousands of foreign travelers to the United States, many of whom do not speak English.”

In 2009, the last year for which complete numbers were available, CBP spent $15.2 million on the program, according to a Government Accountability Office report the following year.

For Immigration and Customs Enforcement, another arm of the Department of Homeland Security that offers extra pay for foreign language use, the cost was $1.8 million, the GAO analysis found.